Book Review: A Giant of American Law (Reviewing Urofsky’s Louis D. Brandeis)

The politics and jurisprudence of Supreme Court justices have always been spread broadly across the legal spectrum. Depending upon the descriptive phrase in vogue at the time, court members have been portrayed as conservatives, liberals, moderates, activists, strict constructionists, pragmatists, originalists and countless other terms that often attempt to oversimplify and label judicial beliefs. At any given moment in its history, the members of the Supreme Court have rarely found themselves in philosophical unanimity.

The nine justices currently serving on our highest court do share one common trait on their distinguished resumes. All came to the court from service on the federal courts of appeal. Indeed, to a man and woman, their judicial and federal experience far outweighs any legal background outside of the judiciary. While some of the current justices had private practice experience during their legal careers, it was their judicial background that was perhaps the most influential factor in their nomination and confirmation to the Supreme Court.

Depending upon one’s personal viewpoint regarding federal judicial experience as a sine qua non for selection to the Supreme Court, readingMelvin Urofsky’s Louis D. Brandeis: A Life, one cannot help but be struck by the undeniable fact that the political climate of the 21st Century means that a man like Brandeis would have great difficulty being nominated and confirmed to any vacancy on the Supreme Court. Because Brandeis was an outstanding and passionate advocate for causes both popular and unpopular he had a lengthy legal record that would certainly give opponents of his nomination substantial ammunition to battle his occupying a seat on the Court.

Nominated to the Supreme Court by President Woodrow Wilson, Brandeis was everything that contemporary Supreme Court nominees are not. His legal career, depending upon one’s political philosophy was remarkable or radical. In 1916, when President Wilson nominated the Boston attorney to replace Joseph Lamar, Brandeis was nationally recognized as an accomplished and outspoken advocate. He had actively fought private monopolies as well as political corruption. He took on unpopular causes and won victories for many of the less fortunate of the nation. And although his legal career made him a wealthy man, Brandeis often provided legal representation for nominal fees. With due respect to the current Chief Justice who views his legal role as an “umpire,” Brandeis was a player. Indeed he was a tough player who, when appropriate, was not reluctant to give a few body shots in the ongoing legal scrum.

Urofsky’s massive biography devotes more than 700 pages to the life of man who in all likelihood would occupy a front-row seat front-row seat in any Supreme Court Hall of Fame. Roughly 60% of this exhaustive and fascinating biography covers the career of Brandeis the attorney, a pioneer in many aspects of the law, not the least of which was his professional skill as an advocate. Even today, in attorneys offices across the land an advocate is preparing an argument for a reviewing court and considering preparation of what the profession calls a “Brandeis brief.” Black’s Law Dictionary recognizes such a document as an appellate brief that makes use of social and economic studies. In Muller v. Oregon, Brandeis went beyond the dry presentation of abstract legal principles to present social science arguments to the Supreme Court in his successful effort to uphold a statute that set a ten-hour workday for women. At oral argument, Brandeis received the ultimate accolade as he reached the conclusion of his oral argument. Each side had been granted 90 minutes of argument. When Brandeis’s time had expired, Chief Justice Edward White said, “Mr. Brandeis, your time is up but we will consider that the clock has stopped and you may continue.” Finally, the Court’s unanimous decision upholding the statute mentioned Brandeis by name when Justice David Brewer’s opinion observed, “In patent cases counsel are apt to open the argument with a discussion of the state of the art. It may not be amiss, in the present case, before examining the constitutional question, to notice the course of legislation as well as expressions of opinion from other than judicial sources. In the brief filed by Louis D. Brandeis…is a very copious collection of all these matters.” Such recognition in a judicial decision is rare, but Louis Brandeis was that rare attorney whose advocacy clearly influenced the Court’s resolution of the legitimacy of the Oregon statute.

After Wilson nominated Brandeis, attacks on his selection came from two fronts. For those who lament the lack of civility in modern political discourse, reviewing the confirmation battle fought in 1916 reminds us that vicious political debate has been a staple of American politics for centuries. William Howard Taft, who in 1921 would join Brandeis on the court, denounced him as a “socialist.” During Taft’s presidency, Brandeis and the administration crossed swords in a dispute regarding conservationist leaders Gifford Pinchot and Interior Secretary Richard Ballinger. Brandeis attacked Taft’s honesty by establishing that documents allegedly relied upon by Taft were back-dated.

After the Brandeis nomination Taft wrote: “He is a muckraker, an emotionalist for his own purposes, a socialist, prompted by jealousy, a hypocrite, a man who has certain high ideals in his imagination, but who is utterly unscrupulous, in method in reaching them…” Many in the conservative legal establishment shared Taft’s view. A large group of former presidents of the American Bar Association signed a letter declaring him unfit to serve on the Court.

Urofsky minimizes the second front in the Brandeis confirmation battle, the role of religion. Brandeis was the first Jewish Supreme Court Justice and religion had a role in some of the opposition to his nomination. For Urofsky the fact that Brandeis was Jewish was “a complicating factor.” While many of his opponents perceived him as a radical, hostile to business, religion was the secret in the room that needed to be handled in a quiet fashion. Ironically, Louis Brandeis, while Jewish, lived a non-Jewish life for many years. He never set foot in a synagogue until he was 58 years old. Then in 1914 he attended a meeting discussing Zionist suffering in the war in Europe. Brandeis became an outspoken advocate for the Zionist cause. Yet even that passion was not of a religious bent. Brandeis saw a future Palestine as a secular society that espoused Jeffersonian values. The idea of a Jewish homeland for Brandeis was more a social justice issue than a religious one. Belief in Zionism and American patriotism were not mutually exclusive. Indeed, the non-religious support of Zionism by a man like Brandeis was probably crucial for the ultimate United States support of the nation of Israel.

Brandeis served on the Supreme Court from 1916 to 1939. He joined a conservative court that often applied the due process clause of the Fourteenth Amendment in a fashion to void state laws regulating economic activity, In 1932 he eloquently explained why he believed states should be free to enact legislation for the public good. When he dissented from the Court’s decision in New State Ice. Co. v. Liebmann, that invalidated an Oklahoma statute regulating ice companies, Brandeis wrote, “Denial of the right to experiment may be fraught with serious consequences to the nation. It is one of the happy incidents of the federal system that a single courageous state may, if it chooses, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”

Along with Justice Oliver Wendell Holmes, Brandeis fiercely defended free speech. Writing in 1927 in Whitney v. California, Brandeis expressed a view that still could be espoused today in a nation that confronts the devastation of September 11, 2001. “Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burned women. It is the function of speech to free men from the bondage of irrational fears…. If there be time to expose through discussion the falsehood and fallacies, to avert the evil processes of education, the remedy to be applied is more speech, not enforced silence.”

The legal, judicial and public career of Louis Brandeis is remarkable. Melvin Urofsky has provided readers with a thorough and exhaustive account of a great man. But in recounting his life, Urofsky has not avoided the faults that even this great man exhibited. Brandeis had a unique relationship with Felix Frankfurter, then a professor at Harvard. While serving on the Supreme Court, Brandeis paid Frankfurter nearly $50,000 to support various social causes. But Urofsky concludes that Brandeis never asked the professor to engage in unethical activities. Early in his tenure on the Supreme Court, Brandeis offered legal advice to the Wilson administration. Later, in his tenure on the Court, Brandeis, along with Chief Justice Charles Evan Hughes, quietly helped the U.S. Senate defeat Franklin Roosevelt’s court-packing proposal. Such actions by members of the Court though improper have been a staple of American politics since the birth of the Supreme Court.

In the end, Louis D. Brandeis: A Life is a Brandeis brief for this giant of American law. Reading this biography reminds us sadly that the Supreme Court can be a bulwark of liberty for our nation, but only if it can be occupied by great men and women. Those of us who revere the Court must be ever vigilant to see that we find more judges who will emulate Louis Brandeis.

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Stuart Shiffman is a retired judge of the Seventh Judicial Circuit in Illinois.This review originally ran in Judicature and is reprinted by permission.

“whose advocacy clearly influenced the Court’s resolution of the legitimacy of the Oregon statute.”

Almost certainly false. The Court upheld labor laws if common sense OR statistics showed that the laws promoted public health or the health of workers. The Court was clearly convinced that common sense held that women needed special protection. Brandeis’s brief, though influential in the longer term, was superfluous in Muller,and I’m quite sure the case would have been 9-0 even without it.